No. 94-155 STATE OF MONTANA, · 14/06/1995  · evening consuming a great quantity of whiskey and beer, talking, and playing video games.During the course of the night, they all became

No. 94-155

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

APPEAL FROM: District Court of the Eighth Judicial District,1n and for the County of Cascade,The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

WilliamF. Hooks, Appellate Defender Office, Helena,Montana; Nathan J. Hoines, Great Falls, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, JenniferAnders, Assistant Attorney General, Helena, Montana;Patrick L. Paul Cascade County Attorney, GreatFalls, Montana

Filed:

Submitted on Briefs: January 26, 1995

Decided: June 14, 1995

Justice James C. Nelson delivered the Opinion of the Court.

Appellant Stuart Stringer was charged by Information with one

count of aggravated burglary, a felony in violation of § 45-6-

204(Z) (a), MCA, one count of aggravated kidnapping, a felony in

violation of § 45-5-303(l) cc), MCA, and two counts of assault in

violation of 5 45-5-202(Z) (a) and (b), MCA. A jury trial was held

in the Eighth Judicial District Court, Cascade County on November

B-10, 1993, The court dismissed the aggravated burglary count at

the conclusion of the State's case-in-chief, and the jury acquitted

Stringer on one of the felony assault charges. Stringer was

convicted of the charges of aggravated kidnapping and one count of

assault. After sentencing, the District Court entered judgment

against Stringer, who appeals from this judgment. We reverse and

remand.

Stringer raises four issues on appeal:

1. Whether the District Court erred in permittingtestimony concerning the battered woman syndrome?

2. Whether the prosecutor engaged in misconduct?

3. Whether there was sufficient evidence to sustainthe convictions?

4. Whether the District Court erred in refusing toexamine a juror, or to grant relief after beinginformed that a juror may have concealed materialinformation during voir dire thus raising thepossibility of bias and partiality?

BACKGROUND FACTS

Stuart and Kathy Stringer had recently divorced prior to the

incidents giving rise to the charges against Stuart. At the time

the incidents took place, Kathy was living in a basement apartment

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with the Stringer's two daughters, A.S. and I.S. The couple's

three sons were living with Stuart. Kathy and Stuart remarried

shortly after the events occurred.

On April 24, 1993, Kathy and a friend, Ray Rogers, went to a

party at a house belonging to Bob and Cheryl Dumas. According to

the testimony of Kathy, Ray and Bob, the partygoers spent the

evening consuming a great quantity of whiskey and beer, talking,

and playing video games. During the course of the night, they all

became extremely intoxicated.

Kathy spent the night at the Dumas' house, and upon awakening

at approximately 5:00 or 6:00 a.m., she drank some more whiskey.

The next thing Kathy remembers is being awakened by her ex-husband

Stuart. At this time Kathy was in bed with Ray who had also spent

the night at the Dumas' house.

In a written statement given to the Great Falls police on

April 26, 1993, Kathy described what transpired next:

At about 9:30 a.m., I was in bed at Robert Dumas['] houseat #17 Fisher Trailer Park and was awakenled] by StuartStringer, my ex[-lhusband with a gun pointed in my faceand Ray Rogersi’l face. Stuart said wake up Ray andKathy you . . bitch, I'm going to kill you. I am foggyabout the rest but to the best of my knowledge, RobertDumas came in front of the gun and told Stuart no, not inmy house Stuart. Stuart took off. I got dressed and Raytook me to my house. I went and got something to eat atTaco Treat and then went home and went to sleep.

However, Kathy's, Ray's and Robert's trial testimony was

considerably different from Kathy's written statement. All three

testified that Stuart had awakened Kathy and Ray who were in bed

together, and that Kathy and Stuart argued and exchanged

profanities. Kathy testified that she did not remember if Stuart

3

had a gun with him, but was certain that he did not point a gun at

her or threaten her. Ray testified that Stuart did not threaten to

kill Kathy or Ray, and that he was certain Stuart did not have a

gun. Robert testified that Stuart had a gun which was in a holster

which was tucked into his pants. According to Robert, the

holstered gun began to slip out of Stuart's pants while he and

Kathy were arguing, and Stuart grabbed it and placed it back into

his pants before it fell. The argument ended when Robert

interceded and asked both Kathy and Stuart to leave.

Later that evening, Stuart went to Ray's apartment and asked

Ray to accompany him to Kathy's apartment because he wanted to talk

to her and needed a "witness." Ray agreed to accompany Stuart, and

the two men walked to Kathy's apartment. That evening, at the

request of the police, Kathy wrote the following statement

regarding what transpired upon Stuart's arrival:

About 11:15 p.m. I was being pulled out of bed by my hairby Stuart. EHle threw me against the wall and started tostab at me with his pocket knife. Glenda, the ladyupstairs yelled at Stuart and told Stuart to leave. Shecalled 911 - Stuart made me come out with him and RayRogers and walk to talk - he kept slashing out at me withthe knife. He made Ray and me walk down the alley to15th St. and he kept on telling Ray and I he was going tokill all of us including himself. He kept on slaping[sic] me up in my mouth and pushing Ray and making metell him I was going to come back home and how I know Ilove him and how I was causing problems with him and Rayand how I am and will belong to him. Also he had Rayscared to death. We walked back home and police werethere and arrested him.

At trial, Kathy gave a different version of the events

occurring that night and testified that the statement she wrote was

false. Kathy stated that she wrote a false statement because she

4

was still intoxicated and embarrassed at having been caught in bed

with Ray. Kathy then stated that on the night of April 25, 1993,

she was lying in bed holding a pocket knife and contemplating

suicide by cutting her wrists. Stuart came in to her room and

attempted to take the knife. The two struggled with the knife and

Kathy testified that she, and maybe Stuart, received cuts. Kathy

then stated that she went for a walk voluntarily with Stuart so

that they could talk.

Kathy mentioned at trial that Stuart was always welcome at her

house, and that she voluntarily went on a walk with Stuart and Ray

in an attempt to "work things out." She also stated that Stuart

did not threaten to kill her or Ray during the walk and that

neither she nor Ray were afraid of Stuart at this time.

Great Falls Police Officers Carey Tamborino and John Catlett

were dispatched to the scene that night as a result of a 911 call.

Officer Tamborino testified that upon arriving at Kathy's

apartment, he met Glenda King, Kathy's landlady who lived upstairs

from Kathy. Glenda explained to Officer Tamborino that Stuart had

come to the residence and that she had told Stuart that she did not

want him in the house. According to officer Tamborino, Glenda

stated that Stuart had a knife, and walked down the stairs to

Kathy's apartment and left blood on the railing. She reported that

she heard Stuart shout, "you're going to die with me here if you

don't come with me." Glenda also told Officer Tamborino that she

heard a struggle and then saw Kathy, Stuart, and Ray leave the

apartment.

Officer Tamborino also spoke with A.S. and I.S., Stuart and

Kathy's daughters, that night at the scene. A.S. told him that her

dad was angry about the recent divorce and that when he arrived

that evening she believed he was drunk. A.S. related that Stuart

went downstairs, struggled with Kathy and took her out of the

apartment at knife point, and stated that he might kill her.

Officer Tamborino stated that I.S. appeared to be hysterical, that

she was crying and saying "he's going to kill her."

Shortly thereafter, Kathy, Stuart and Ray returned to the

apartment. Officer Tamborino observed that Kathy had a cut on her

wrist, and on her lip. Officer Catlett patted Stuart down, but

found no weapons on him. He then placed Stuart under arrest and

transported him to the county jail.

Officer Tamborino questioned Ray about the incident.

According to Tamborino's report which he wrote up at the end of his

shift, Ray told him that Stuart had come to his apartment that

night and asked him to accompany him to Kathy's apartment. When

asked why Stuart had made this request, Ray related that Stuart had

said "I'm afraid I'm going to kill her." Ray also indicated that

he was afraid of Stuart, and that Stuart had been brandishing a

handgun earlier in the day.

At trial, A.S., Ray, and Glenda King gave testimony which was

contradictory to the statements they had given to Officers

Tamborino and Catlett. Their testimony at trial tended to

demonstrate that Stuart did not commit the crimes charged.

Prior to trial, the State gave notice of its intention to call

6

Shirley LaRocque, a client advocate for a Great Falls' battered

woman 1 s shelter, as an expert witness. The purpose of Ms.

LaRocque's testimony was to explain the battered woman syndrome and

its effect on spouses and children.

On the first day of trial, the defense moved to exclude any

prior acts evidence regarding Stuart's prior criminal history and

domestic abuse charges, including testimony from Ms. LaRocque

concerning prior abuse between Stuart and Kathy on the basis that

no Just notice had been given. The court acknowledged that because

the testimony would involve explaining a cycle of abuse, it raised

Just notice requirements. However, the court allowed Ms. LaRocque

to testify, on the condition that she not testify to any prior acts

of abuse. Ms. LaRocque testified concerning the cycle of domestic

abuse, and explained that it is not uncommon for a battered woman

to recant or change her story at the time of trial.

The court dismissed the aggravated burglary charge at the end

of the State's case, on the grounds that there was insufficient

evidence. The jury convicted Stuart of two of the charges: (1)

aggravated kidnapping; and (2) assault. The jury found Stuart not

guilty of the second assault charge. Additional facts will be

presented as are necessary for discussion of the issues.

1. EXPERT TESTIMONY

The first issue Stuart raises on appeal is that evidence of

the battered woman syndrome is not admissible because it was

offered to bolster Kathy's credibility. Stuart also attacks the

admissibility of battered woman syndrome evidence on several other

grounds. However, we shall limit our discussion to the above

mentioned argument as it is dispositive.

Standard of Review

Rulings on the admissibility of evidence are left to the sound

discretion of the trial court. Mason v. Ditzel (1992), 255 Mont.

364, 370-71, 842 P.2d 707, 712. We review a district court's

evidentiary rulings to determine whether the court abused its

discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d

1257, 1263.

Use of Battered Woman Svndrome Evidence.

Parties have generally sought to introduce evidence concerning

the battered woman syndrome for two purposes: (1) as an affirmative

defense of justifiable use of force in a criminal trial, See State

v. Kelly (N.J. 1984), 478 A.2d 364; or (2) to provide a possible

explanation for the abuse victim's recantation and to impeach her

subsequent testimony that she had lied in her original statement.

See State v. Borrelli (Corm. 1993), 629 A.2d 1105. This Court has

never directly ruled on whether evidence of the syndrome can be

used as an affirmative defense, but we have recognized that this

evidence has been used in other jurisdictions. State v. Hess

(1992), 252 Mont. 205, 828 P.2d 382. In addition, while we have

never directly ruled on whether it is permissible to allow expert

testimony to explain why an abused woman might recant earlier

statements at a criminal trial against her abuser, we have held

that it was impermissible to offer testimony concerning the

battered woman syndrome to bolster a female defendant's

8

credibility. State v. Dannels (1987), 226 Mont. 80, 734 P.2d 188.

In Dannels, we also acknowledged that battered woman syndrome

evidence can be used to prove that a criminal defendant did not

have the requisite state of mind to commit the crime. Dannels, 734

P.2d at 192. Therefore, this case presents the first opportunity

for us to decide whether battered woman syndrome evidence can be

used by the prosecution in a criminal trial to impeach the

complaining witness' trial testimony, and to explain why a witness

recants earlier statements at trial.

Testimonv used to bolster victim's credibilitv.

Relying on Dannels, Stuart argues that a person may not

bolster his or her credibility and explain inconsistent statements

were made because he or she suffered from the battered woman

syndrome. In Dannels, the defendant was charged with deliberate

homicide in connection with the death of her husband. When the

police questioned her about the incident, Dannels told the police

that she received the bruises during the course of an attack by

robbers who broke into their motel room, assaulted her, and killed

her husband. However, later examination by a physician revealed

that the bruises were old injuries and could not have been

sustained on the night in question. Dannels, 734 P.2d at 191. At

trial, Dannels sought to introduce evidence concerning the battered

woman syndrome to explain why she lied to the police about the

origin of her bruises. This Court acknowledged that such evidence

could be used to prove that the defendant did not have the

requisite state of mind to commit the offense in accordance with §

9

46-14-102, MCA. However, we held that the evidence was

inadmissible because it was being offered for the purpose of

bolstering the defendant's credibility. Dannels, 734 P.2d at 192-

93.

However, the purpose for which evidence of the syndrome was

sought to be introduced in Dannels is distinguishable. In Dannels,

the criminal defendant sought to introduce evidence of the battered

woman's syndrome to bolster her credibility. She did not offer the

evidence in support of her own self defense theory. In the instant

case, the evidence was offered by the prosecution, to provide an

understanding as to why the complaining witness might recant her

earlier statement that she suffered abuse at the hands of her

spouse. The overwhelming trend of other jurisdictions is to allow

evidence regarding the battered woman syndrome. Expert testimony

concerning battered woman syndrome is accepted in at least thirty-

one states. Bechtel v. State (Okl.Cr. 1992), 840 P.2d 1, 7.

The "battered woman syndrome" is the term used to define the

"common characteristics that appear in women who are abused

physically and psychologically over an extended period of time by

the dominant male figure in their lives." Kelly, 478 A.2d at 371.

Because the average juror might not have experience or knowledge

about the battered woman syndrome, expert testimony is used to

explain recantation by the complaining witness.

The relevance of battered woman syndrome evidence has been

aptly described as follows:

A battered woman may act in ways that areincomprehensible to the average person. She may tolerate

10

physical abuse for years, hide her abuse, delay reportingeven severe abuse to authorities or friends, or recantand attempt to have charges against her abuser dropped.Consequently, when the state's key witness, the batteredwoman, testifies against her batterer, she may appear tobe fabricating her story. If the jury does notunderstand why the woman behaved in this manner, it willbe unable to assess the evidence correctly. Thus, whena batterer is prosecuted, the state needs experttestimony to educate the jury about battered women inorder to enable the jury to determine the facts in issue.(Footnotes omitted.)

Schroeder, Usinq Battered Woman Svndrome Evidence in the

Prosecution of a Batterer, 76 Iowa L. Rev. 553 (1991).

Jurisdictions which have approved battered woman syndrome

evidence to explain a victim's recantations do so on the basis that

the expert's testimony would provide a reasonable explanation for

the victim's recantation. State v. Bednarz (Wis.Ct.App. 1993), 507

N.W.Zd 168; State v. Borrelli (Corm. 19931, 629 A.2d 1105; Arcoren

v. U.S. (8th Cir. 1991), 929 F.2d 1235. In Bednarz, the Wisconsin

Court of Appeals explained:

The battered woman's syndrome is recognized as asubcategory of posttraumatic stress disorder. Whilethere are various possible explanations for [thevictim's] recantation, one explanation could be that therecantation is consistent with this form of posttraumaticstress disorder. An untrained lay person does not knowthat recantation can be suggestive of posttraumaticstress in the form of the battered woman's syndrome. Theexpert opinion was thus permissible to enlighten the juryand allow it to intelligently consider the syndrome asone possible explanation for [the victim's1 behavior.

Bednarz, 507 N.W.Zd at 172; see also, State v. Riker (Wash. 1994),

869 P.2d 43, 47 "[the battered woman syndrome] is considered a

subset of post-traumatic stress disorder. . . . 'I

Expert testimony in Montana is governed by Rule 702,

M.R.Evid., which provides:

11

If scientific, technical, or other specialized knowledgewill assist the trier of fact to understand the evidenceor to determine a fact in issue, a witness qualified asan expert by knowledge, skill, experience, training, oreducation may testify thereto in the form of an opinionor otherwise.

Here, Stuart is not contesting the general admissibility of

evidence regarding the battered woman syndrome, rather, he asserts

that it cannot be used to bolster a witness' credibility. It is

well established that an expert cannot be allowed to comment on the

credibility of an alleged victim. State v. Harris (19911, 247

Mont. 405, 409-10, 808 P.2d 453, 455; State v. Brodniak (1986), 221

Mont. 212, 222, 718 P.2d 322, 329. The reason for this rule is

that the question of credibility lies within the province of the

jury, and expert testimony regarding credibility invades the jury's

function by placing a "stamp of scientific legitimacy" on the

victim's allegations. Harris, 808 P.2d at 455.

However, in this case, the evidence was not offered to bolster

Kathy's testimony, but to provide the jury with an explanation for

the inconsistencies in her testimony. Furthermore, the expert did

not comment as to which of Kathy's statements were more credible or

offer an opinion on whether Kathy is a battered spouse. Rather,

she merely provided the jury with information to aid the jury in

evaluating the evidence. This type of limited testimony does not

invade the jury's role in determining the credibility of witnesses.

Arcoren, 929 F.2d at 1241.

While we hold that expert testimony on battered woman syndrome

should generally be admissible, in this case, the State failed to

lay an appropriate foundation establishing that Kathy was a

12

battered spouse. Therefore, testimony about how battered women act

was irrelevant and should not have been admitted.

Dr. Lenore Walker, a psychologist who was preeminent in

developing the battered woman syndrome, explains in her book, The

Battered Woman (1979)l, that the violence inherent in a battering

relationship is not random, but follows an identifiable cycle.

The battering cycle has "three distinct phases": the tension

building phase; the explosion or acute battering phase; and the

calm, loving respite (often called the honeymoon phase). During

the first phase, minor battering incidents may occur. The woman

attempts to minimize the incidents and calm the batterer to prevent

the violence from escalating. As tension increases, it becomes

more difficult for the coping techniques to work, which escalates

into the second stage, the battering incident. This stage is

characterized by the uncontrollable nature of the abuse (injury,

brutality and sometimes death). The battering incident is followed

by the third phase where the couple makes up. During this phase,

the batterer exhibits loving and caring behavior and typically begs

for forgiveness and promises the battering will never happen again.

Lenore E. Walker, The Battered Woman 56-70 (1979). Dr. Walker

also explains that "in order to be classified as a battered woman,

the couple must go through the battering cycle at least twice. Any

woman may find herself in an abusive relationship with a man once."

Lenore E. Walker, The Battered Woman xv (1979).

Many jurisdictions considering the admissibility of expert

1 . Harper & Row Publishers.

13

testimony on the battered woman syndrome require proof that the

witness was the victim of two cycles of abuse. See for example

State v. Koss (Ohio 199(J), 551N.E.Zd 970; State v. Borrelli (Corm.

1993), 629 A.Zd 1105; Bechtel v. State (1992), (Okl.Cr. 1992), 840

P.2d 1. It follows then that there first must be evidence of a

battered victim before expert testimony on the syndrome may be

admitted. Koss-J 551 N.E.Zd at 974, "a defendant attempting to

admit expert testimony regarding the battered woman syndrome must

offer evidence which establishes herself as a 'battered woman."'

See also Borrelli, 629 A.Zd at 1115 n.15.

While we decline to set hard and fast foundational

requirements, preferring instead, to leave those to the sound

discretion of the trial court on a case by case basis, the party

seeking to introduce battered woman syndrome evidence must lay an

appropriate foundation substantiating that the conduct and behavior

of the witness is consistent with the generally recognized symptoms

of the battered woman syndrome, and that the witness has behaved in

such a manner that the jury would be aided by expert testimony

which provides a possible explanation for the behavior. It also is

important to re-emphasize that the expert may not testify to or

comment upon the credibility of the witness.

Since the evidentiary foundation will likely involve offering

other acts evidence showing prior completed cycles of abuse,

counsel seeking to introduce battered spouse syndrome evidence must

file the appropriate notice according to State v. Just (1979), 184

Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249

14

Mont. 136, 814 P.2d 52. If the court determines that the proffered

other acts evidence is not admissible under the tests established

in Just and Matt-I the court may nevertheless, hear the foundation

testimony outside the presence of the jury and appropriately limit

the testimony presented to the jury.

In the instant case, the State did not file a modified Just

notice, and was therefore precluded from offering other acts

testimony. Moreover, at trial, the State failed to demonstrate

that Kathy was the victim of prior cycles of abuse. Accordingly,

we hold that the expert's testimony should have been excluded

because the State failed to lay an appropriate foundation for the

expert's testimony by establishing or offering any evidence that

Kathy was a battered spouse.

2. PROSECUTORIAL MISCONDUCT

Stuart contends that the prosecutor engaged in misconduct

when, during closing argument, the prosecutor characterized the

witnesses favorable to the accused as liars, asserted his personal

opinion on Stuart's guilt, referred to matters not in evidence, and

insinuated that defense counsel was keeping vital information

probative of guilt from the jury. Stuart asserts that the

prosecutor's misconduct denied him his right to a fair trial as

guaranteed by the Sixth Amendment of the United States Constitution

and Article II, Section 24, of the Montana Constitution. We agree.

We initially note that in each instance of alleged misconduct,

defense counsel objected to the prosecutor's statements, and

therefore, Stuart meets the contemporaneous objection rule at § 46-

15

20-104(2), MCA.

Stuart asserts that the first instance of prosecutorial

misconduct occurred when the prosecution characterized Kathy and

the Stringer children as liars during his initial closing argument.

The prosecutor stated:

A domestic situation should be an environment wherethere's nurturing between the spouses and children, wherethere's love, where there's trust, where there's thingsbeing done in caring for each other.

But what do we see in this particular case? We seea family that's ripped apart. We see a wife that'swilling to lie, be embarrassed, blame herself for thedefendant's acts.

We see children that are taught to lie and despiseauthority. We see friends who are asked to lie. .

We see children that live in a constant state ofhysteria. 1t's no wonder that two of them are in thepsych ward at the hospital as we talked today. It's nowonder that another is in a special program at --

According to Stuart, the second incident of misconduct

occurred when the prosecutor expressed his personal opinion and

belief that Stuart was guilty of the crimes charged when he stated

in rebuttal closing argument:

Mr. Stringer is the defendant. He's is one [sic] that'scharged. He's the one that committed the crimes.

I have a strong belief in this case that thesecrimes were committed.

Finally Stuart argues that the prosecution insinuated that the

defense had suppressed information relative to guilt when the

prosecution stated:

What the defense hasn't disclosed to you is that --he talked about probable cause. They talked aboutreasonable doubt. They talked about burden of proof.They don't disclose to you what's necessary for us tobring these charges: The affidavit of probable cause,

16

approval of the Court, motions to dismiss by them,rulings by the Court.

This Court has stated repeatedly that it is highly improper to

characterize either the accused or the witnesses as liars or offer

personal opinions as to credibility. State v. Arlington (1994),

2 6 5 M o n t . 1 2 7 , 1 5 7 , 875 P.2d 307, 325; State v. Rodgers (1993), 257

Mont. 413, 417, 849 P.2d 1028, 1031; State v. Musgrove (19781, 178

Mont. 162, 172 , 582 P.2d 1246, 1252-53. In addition, we have

recognized that the Rules of Professional Ethics prohibit a lawyer

from asserting personal opinions as to the credibility of a

witness, or the guilt or innocence of the accused. State v.

Stewart (1992), 253 Mont. 475, 482-83, 833 P.2d 1085, 1089-90;

Mussrove, 582 P.2d at 1252-53.

The State contends that the prosecutor did not give a personal

opinion regarding the witnesses' credibility, but was merely

commenting on evidence that Kathy and other witnesses had changed

their stories from the time they had originally talked to the

police. While a prosecutor may point out and comment on

contradictions and conflicts in testimony, ~'[ilt was the task of

the jury to determine which testimony and evidence was more

believable." Stewart, 833 P.2d at 1090. We are not suggesting

that it is reversible error every time counsel mentions the word

"lie" in closing argument. However, in this case, the prosecutor

commented so directly on the credibility of the witnesses, and

called them liars in so blunt a manner that we cannot conclude that

he was merely commenting on or pointing up inconsistencies in the

testimony.

17

It was also improper for the prosecutor to suggest that the

trial court had already made findings indicative of guilt and that

defense counsel had kept these findings from the jury. By

referring to the "affidavit of probable cause" and rulings by the

court concerning motions to dismiss, the prosecution not only

commented on evidence which was not in the record, but implied that

the court had approved the charges and passed judgment on Stuart's

guilt.

The reasons why prosecutorial comments about the guilt of an

accused are improper have been set forth at length in State v.

Campbell (1990), 241 Mont. 323, 328-29, 787 P.2d 329, 332-33.

Among the reasons are that: (1) a prosector's expression of guilt

invades the province of the jury and is an usurpation of its

function to declare the guilt or innocence of an accused; (2) the

jury may simply adopt the prosecutor's views instead of exercising

their own independent judgment as to the conclusions to be drawn

from the testimony; and (3) the prosecutor's personal views inject

into the case irrelevant and inadmissible matters or a fact not

legally proved by the evidence, and add to the probative force of

the testimony adduced at the trial the weight of the prosecutors'

personal, professional, or official influence.

This Court has been unequivocal in its admonitions to

prosecutors to stop improper comment and we have made it clear that

we will reverse a case where counsel invades the province of the

jury by characterizing a party or witness as a liar, or his

testimony as lies. Arlinqton, 875 P.2d at 325. After considering

18

the prosector's closing and rebuttal arguments in full, we hold

that Stuart was prejudiced by the prosecutor's improper comments.

3. INSUFFICIENT EVIDENCE

At the close of the State's case-in-chief, Stuart moved for a

directed verdict on the basis that there was insufficient evidence

to support a finding or verdict of guilty. The trial court agreed

that there was insufficient evidence to support the aggravated

burglary charge and dismissed that charge, and the remaining three

charges went to the jury. The jury found Stuart guilty of two of

the remaining three charges, felony assault and aggravated

kidnapping. Stuart contends that the District Court erred in

denying his motion for a directed verdict because the only proof of

these crimes was Kathy's prior written inconsistent statement.

Section 46-16-403, MCA, allows a trial court to dismiss a

criminal action at the close of the prosecution's case-in-chief,

when the evidence is insufficient to support a finding or verdict

of guilty. An accused is entitled to an acquittal "if reasonable

persons could not conclude from the evidence taken in a light most

favorable to the prosecution that guilt has been proven beyond a

reasonable doubt." State v. Mummy (1994), 264 Mont. 272, 276, 871

P.2d 868, 870. The decision to direct a verdict lies within the

sound discretion of the trial court and will not be reversed absent

an abuse of discretion. Mummy, 871 P.2d at 870.

According to Rule 801(d) (1) (A), M.R.Evid., prior inconsistent

statements are not hearsay, and thus are admissible as substantive

evidence if:

19

The declarant testifies at the trial or hearing and issubject to cross-examination concerning the statement,and the statement is (A) inconsistent with thedeclarant's testimony .

See also, State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d

1343, cert. denied, 499 U.S. 891, 101 S.Ct. 252, 66 L.Ed.Zd 118.

However, in State v. White Water (1981), 194 Mont. 85, 88, 634

P.2d 636, 638, we held that an "unreliable prior inconsistent

statement should not be the sole, substantive evidence" in a

criminal conviction. While a prior inconsistent statement standing

alone is insufficient to sustain a conviction, a prior inconsistent

statement which is corroborated by other circumstantial evidence

may suffice. State v. Pinkerton (1995), 891 P.Zd 532, 535, 52

St.Rep. 186, 188.

In the instant case, we conclude that the circumstances under

which Kathy's prior inconsistent statements were given were not

unreliable. The statements were written out and signed by her on

April 25, 1993, shortly after incidents occurred. Although Kathy

had been drinking heavily on April 24, 1993, both officers

Tamborino and Catlett testified that Kathy did not appear to be

intoxicated. In addition, Kathy's statements were supported by

other circumstantial evidence: (1) Kathy had cuts, scrapes and

bruises on her body which were photographed by officer Catlett and

introduced at trial; (2) the officer's testimony regarding I.S's

hysterical appearance and statement, "he's going to kill her" which

they observed shortly after arriving at the scene; (3) the fact

that Kathy had left for a walk at 11:OO at night without wearing a

coat or socks; and (4) the officer's testimony that the statements

20

of A.S., Glenda King, and Ray Rogers, taken that night at the

scene, were consistent with one another.

Construing the evidence in a light most favorable to the

prosecution, we conclude that the evidence was sufficient to

withstand a motion for a directed verdict and hold that the

District Court properly denied Stuart's motion.

4. JUROR MISCONDUCT

After voir dire had been completed and the jury had been

sworn, but before any witnesses were called, defense counsel

advised the trial court that Kathy had told him that she knew one

of the jurors, D.M.. In chambers, counsel related that there had

been problems between Kathy, D.M., and D.M.'s daughter. Defense

counsel asked the court to talk to the juror, to determine if the

juror did in fact know Kathy, and if so, whether she would be

prejudiced against Stuart because of this fact. The court declined

to interview D.M., concluding that since she did not mention that

she knew Kathy when asked this during voir dire, "we must assume

that . although Mrs. Stringer or some witness may know this

lady, this lady doesn't really know them to that degree." Defense

counsel then asked if he could make an offer of proof, which the

court denied.

Article II, Section 24 of the Montana Constitution and the

Sixth Amendment to the United States Constitution, each guarantee

a criminal defendant the right to a fair and impartial jury. A

juror's nondisclosure of information requested, may constitute

misconduct and a denial of the accused's right to a fair and

21

impartial jury if juror's nondisclosure amounts to "intentional

concealment." State v. Bauer (19841, 210 Mont. 298, 310, 683 P.2d

946, 953.

The State claims that the defense failed to demonstrate

intentional concealment even though it had the opportunity to do so

at the post-trial hearing on the defense's motion for a new trial.

However, we indicated in State v. Eagan (19781, 178 Mont. 67, 78,

582 P.2d 1195, 1201, and in State v. Baugh (1977), 174 Mont. 456,

571 P.2d 779, when during trial, the court is informed of

misconduct, the juror should be interviewed by the court, and the

court should inquire of the panel before the verdict is announced

if the misconduct tainted the panel. Here, the District Court had

the opportunity to question the juror, at the time the issue was

brought before it, but chose not to do so.

1n making its decision, the court relied on an assumption that

although Kathy Stringer may know the juror, "this lady [the juror1

doesn't really know them to that degree." The court's assumption

was without factual basis, and the court should have interviewed

the juror to determine if there was prejudice.

It is the rule in this state that if jury misconduct isshown tending to injure the defendant, prejudice to thedefendant is presumed; however, the presumption is notabsolute and may be rebutted by the use of testimony ofthe jurors to show facts which prove that prejudice orinjury did not or could not occur.

State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202

citing State v. Jackson (18901, 9 Mont. 508, 522, 24 P. 213, 216

Putro v. Baker and Mannix Electric, Inc. (1966), 147 Mont. 139

147, 410 P.2d 717, 722. The court's assumption as to the juror's

22

state of mind or knowledge was not a valid basis to reject the

prejudice inherent in the circumstances. We hold that the court's

failure to investigate the matter at the time it was brought to its

attention by defense counsel was error.

Reversed and remanded for further proceedings consistent with

this opinion

23

CERTIF?I(-Arr; nl? CERVTP’*z IIY VI YYI., I-u

I hereby certify that the following certif ied order was sent by United Statesto the following named:

prepaid,

June 14, 1995

WILLIAM F. HOOKSAppellate Defender OfficeP.O. Box 200145Helena, MT 59620-0145

NATHAN J. HOINESAttorney at Law600 Central Plaza, Suite 316Great Falls, MT 59401

HON. JOSEPH P. MAZUREK, Attorney GeneralJennifer Anders, AssistantJustice Bldg.Helena, MT 59620

Sue WeberCounty AttorneyCascade County CourthouseGreat Falls, MT ‘59401

ED SMITHCLERK OF THE SUPBEME COURTSTATE OF MONTANA